You have done everything “by the book.” You promptly responded to the insured’s requests. You honestly investigated the claim, considered everything and decided coverage should be denied.
The insured disagrees with your decision. The company has been sued, and now a lawyer wants to ask you questions. You are going to be deposed.
This article is about how to survive depositions. We do not pretend to know any universal truths; nor do we purport to know all (or even most) of the answers. What we do know is what has worked for us, at least most of the time.
A deposition is an examination under oath before a court reporter who records what is said. Its purpose is to elicit in a question-and-answer format information that is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Used properly, a deposition can narrow the issues and commit a party or witness to a position. Because a witness is often less prepared for a deposition than he or she would be for trial, a skillful interrogator can do significant damage to a party's position and establish a record replete with potential avenues for impeachment, should the matter go to trial.
One of the reasons for this article is to provide some food for thought and discussion with your lawyer before you are subjected to questioning.
They are explained below.
Rule 1: Tell the Truth.
The lawyer's pre-deposition refrain to the witness is universal: Don't guess, don't speculate, don't volunteer information, don't answer unless you understand the question, and don't argue. This is all good advice, and we agree. It is also part and parcel of Rule 1: Do tell the truth.
Guessing and speculating are not truth-telling. What a witness guesses is irrelevant. Speculation about events is just that - speculation; it is not the truth.
Volunteering information is not truth-telling. The task of the lawyer is to ask good questions, and the witness is obligated to answer truthfully. Volunteering information is not a truthful answer to the question. It is an answer to something else and often a violation of Rule 2. It is generally harmful.
Arguing is not truth-telling. Your lawyer was hired to make your arguments for you. The task of the witness is to state the facts truthfully. As your advocate, your lawyer is charged with taking those facts and telling your side of the story. Aside from violating Rule 1, arguing is picking a fight you cannot win.
Playing games is not truth-telling. There are few things worse than the witness who repeatedly says, “I don’t recall,” when he really does recall, especially when the company needs that witness to testify at trial! At trial, all those “I don’t recall” responses makes the witness less credible.
When you meet with your lawyer, you will hear the "don'ts." You may forget some or all of them at some point. Remembering Rule 1 should be your goal. If you heed it, the "don'ts" should follow.
Rule 2: You Cannot “Win” Your Case in Deposition; You Can Only Lose It.
Trying to “win” your case in a deposition often leads to a Rule 1 violation. When witnesses let their emotions, not their truthful recollections, control, they are less likely to listen to the question and more likely to guess, speculate, argue, and ultimately, make mistakes.
This rule is hard to follow. It is natural to want to tell your side of the story and to make sure the other lawyer understands.
Your lawyer is there to protect you. He or she will be your advocate, taking the truth as you tell it and presenting your story. Good trial lawyers are, at bottom, good story-tellers.
Following Rule 1, and remembering Rule 2, should carry you through the questioning. They are simple rules to help you survive your deposition.